Free?

[Chante]

Steven Schveighoffer wrote:
> On Wed, 26 Oct 2011 19:18:14 -0400, Chante <udontspamme at never.will.u>
> wrote:
>
>>
>> "Steven Schveighoffer" <schveiguy at yahoo.com> wrote in message
>> news:op.v3yn2di8eav7ka at localhost.localdomain...
>>
>>>>> 3. It is a very slippery slope to go down.  Software is a purely
>>>>> *abstract* thing, it's not a machine.
>>>>
>>>> Software is a machine: concrete thing doing concrete job. Patent
>>>> doesn't  protect the machine itself, it protects concrete design
>>>> work put into  it. Design is a high-profile work, a good design
>>>> has a good chance to be  more expensive than the actual
>>>> implementation. So it's perfectly valid  to claim ownership for a
>>>> design work and charge fees for it.
>>>
>>> And why wouldn't you be able to do this without patents?
>>
>> One can: trade secrets. But a lot of times, techniques cannot be
>> hidden away, for just releasing a product may divulge the "secret",
>> so something more is needed: patent.
>
> If you don't "divulge" the secret, then you don't sell anything.

What do you mean? You don't think that behind the covers of compiled 
sofware, patentable things don't exist?

> Note
> that the secret is already difficult to reproduce, no patents
> necessary, because it's not in source form, and one cannot simply
> duplicate the code, you have to rewrite it in your own code.

Just "difficult" to produce? Not "impossible" in many cases?

> Just
> knowing the secret isn't enough.

("keeping" would be much better than "knowing" here, as that is what you 
meant. "knowing" makes the reader think twice or thrice or reread to 
figure out if you are talking about the inventor or the copycat).

> Patents are needed because you
> cannot copyright machines. Copyright is actually a better protection,
> because it can be extended over 100 years past the lifetime of the
> author (I question the need for this time length too).

I really don't see the relevance of copyright for a company in the 
business of creating and selling shrink-wrapped software (i.e., not 
selling source code product). Patents as a means of protection for only 
that which cannot be reasonably kept a trade secret, seems quite in the 
right direction for "patent system reform".

>
> People sell books, and have no problem doing so without patents,
> because a book is hard to reproduce.  But one can always read a good
> book and use the same "design" (i.e. plot elements, sequence of
> story, etc.) to write their own book.  And it doesn't necessarily
> hurt the original author.

So your point is that that is analogously applicable to software too? I 
could see that only if the patterns were reused in software not in 
competition with the original software. The scenario with the book 
results in a new story. The scenario with software could result in a 
competitive product if it has the same functionality.

>
>>
>>> Again, copyright  already covers software.
>>
>> While it's probably not enough or even the correct thing in the first
>> place, is "software" copyrightable or source code, or both
>> separately? It seems that copyright has appropriateness for
>> software, but is useless as protection of the software designs as
>> represented by source code.
>
> Both are copyrightable.  Source code is written words, binary code is
> a direct translation.

What I was asking is whether one needs 2 patents or one: one for the 
source and another for the shrink-wrapped product? I can see the value of 
copyright for the shrink-wrapped product, but not for the source code 
because it doesn't give any useful level of protection from reproduction 
of something ever so slightly different being produced.

> If source code is equivalent to a book,

It isn't.

> then the binary code is
> equivalent to a translation to a different language of the same book.

I think the book analogy is detrimental for it isn't even "apples and 
oranges", it's "fruits and meats" or "fruits and cars" or something.

> Both are covered under the original author's copyright.
>
>>>  Plenty of software companies have large amounts  of IP and are
>>> successful without having any software patents.
>>
>> Are you suggesting that there MUST be only ONE ("one and only") way?
>> Great then, let's make it so there is only ONE software too. Problem
>> solved, eh?
>
> I'm not really sure what you are saying here...

You seemed to have stated something like, "See, here is an example where 
it works that way, hence it should be the golden standard that everyone 
should/must use. There is no need for multiple things tailored to 
specific scenarios or desires". Or, "See, they don't need software 
patents to earn a buck, so no one does. Let's close the patent office 
tomorrow then".

>
>>
>>>
>>>>
>>>>> It can be produced en mass with near-zero cost.
>>>>
>>>> Dead software is seen as unusable. So - no, to produce software you
>>>> need  continuous maintenance and development which is as expensive
>>>> as any  other labor.
>>>
>>> What I mean is, with a traditional machine, there is a cost to
>>> recreating  the machine.  Such manufacturing requires up-front
>>> investment that can  possibly outweigh the cost of implementing the
>>> design.  Patents protect  the entity putting their product out there
>>> from having a larger company  who can throw money around beat you
>>> using your idea.  In software, since  the software is protected by
>>> copyright, the competition must build their  own version of your
>>> software ideas first, and the distribution is  relatively
>>> insignificant.  In other words, once you release your idea to  the
>>> world, it can be sold and installed for millions in a matter of
>>> days,  giving you the lion share of the market.
>>
>> Seems like incentive to get into Engineering, huh. Those who want to
>> "win big" and expend no effort should stick to buying lottery
>> tickets (and stop preying upon others). Keeping things away from the
>> sleazy, grimey fingers of those who want to profit from someone
>> else's labor or get something for nothing, is a good thing.
>
> If nobody was able to use anyone else's ideas, where would we be
> today?

I was not suggesting that people should not share ideas. People like to 
do that and always will do that. Just not to everyone and all the time. 
Well-defined, narrow interfaces, I would prefer. The patent system is the 
opposite of that.

> You may misunderstand my point of view.  I'm all *for* IP
> protection, just not *monopoly* protection where it is not needed.

Because you feel other's are somehow entitled to the fruits of another's 
labor other than whom the inventor decides are worthy (say his own family 
or company)? How many great changes have been thwarted by such?

> The US patent system as it exists today is not a good fit for
> protecting software.

Not for me and you. For Microsoft it probably is.

> It does not achieve the goals that the patent
> system was created for.

I'm not so sure. Let many innovate for some years, then change to 
first-to-file, then "rape and pillage" "the commoner", give the already 
powerful even more power.

>
> Have you heard of patent trolls?

Yes.

> These are firms that write no
> software, yet they file for or acquire software patents in the hopes
> that some day someone will write covered software and they can
> collect royalties.

Congress or the patent office or whoever controls that stuff seem to in 
on that: first-to-file (it seems to me, but I'm just learning about this 
stuff, so maybe I don't "really" hate the sons-of-bitches). It's perhaps 
class-action suit appropriate? Is that the ONLY way to get people (and 
governments and other institutions) to do the right thing these days?

> How is that not "profiting from someone else's labor"?

It is abhorant. What's more abhorant is that so little thought goes into 
things before hand. Everything is "correction after the fact". I have no 
faith that "loopholes" like that are not "designed-in".

>>>>> 4. Unlike a physical entity, it is very likely a simple
>>>>> individual, working on his own time with his own ideas, can
>>>>> create software that inadvertently violates a "patent" with low
>>>>> cost.
>>>>
>>>> I don't see how this doesn't apply to physical machines.

I left my job/career in the construction equipment manufacturing 
industry, for the very reason: I could never own it. Too much capital 
required: from steel and iron foundry to engines to all kinds of 
earth-moving equipment. All I could ever have in that industry, is a job. 
The software industry, OTOH, allows me to own a company that manufactures 
software.

>>>
>>> When you are talking about patents for a machine or physical entity,
>>> there  is a large investment and cost in just designing the item,
>>
>> How many man years are in the average commercially offered software
>> product?
>
> And how many man years would it take for someone to reproduce it? 
> Again, the patent system covered IP that was not copyrightable. Things 
> that are copyrightable are hard to reproduce.

I was just interjecting that a lot of blood, sweat and tears goes into 
software engineering also. It's not all "a quick and easy hack", even if 
you have a recipe a priori.

>
>>
>>> or the means to  manufacture it.  It's less likely that a simple
>>> individual has the capital  necessary to create it, and if he does,
>>> or can raise it, a patent search  is usually done to avoid
>>> complications. He might also look at expired  patents to get ideas
>>> on how to do things.
>>>
>>> However, working software can be written by one guy in his
>>> apartment in a  couple weeks.
>>
>> "The quick hack" is hardly "mainstream commercial software product"?
>> Why bring up special cases? Why imply that a special case represents
>> the whole realm?
>
> Because it's the quick hacks that infringe on patents which are
> affected.

Independently-developed software should be allowed to coexist. It 
shouldn't be "infringement". Noting that this is indeed irrefutably the 
case (that many patentable software things can be independently 
developed), a lot of time, effort and money should be working on finding 
solution in that area. There is no excuse for not doing so. It is 
complacency, or conspiracy, or non-fitness-for-the-job (maybe I'd prefer 
it to be a crime, maybe it already is, maybe the crime can only be 
identified as such over time (historically)). (As you can tell, I'd fire 
pretty much everyone if I could ;) ).

> Large companies who have libraries of patents don't care
> about violating other company patents, because there is mutually
> assured destruction.

I'm not worried about any company/person having a large number of 
patents, as long as they are truly their inventions and not "trivial". I 
think the second it can be shown that a patented thing has been 
independently invented (for instance, my bankers boxes of designs and 
notes in the basement from 10 years ago (yes, work will have to be done 
in this area if carbon-dating is too course-grained for the task at 
hand)), that patent should be invalidated, replaced with a tombstone 
indicating a non-patentable thing,and respected as a trade secret going 
forward.

>
> Essentially, the quick hack does well, it blossoms into a good piece
> of complex and useful software.  The developer creates a company,
> hires developers, marketing, etc.  Gets big enough, and then some
> competitor decides they are too big and sues to put them out of
> business.  Not having any patents for software, the developer cannot
> counter-sue, and goes out of business.

If the rule I gave above were in place, then, if the little guy truly 
independently invented an already-patented thing, the patent would become 
a trade secret (not much of a "secret" anymore, but still has value, no 
need to make things worse for the inventors by leaving it in the public 
domain) for all who give a care about it.

The current way, "I got here first.. na! na!", is abhorant, and needless 
to say, unbecoming of those responsible for such an implementation.

>
>>
>>>  He's not going to do patent searches when it costs him just  2
>>> weeks time to create the software.
>>
>> Assumption may be made that because a patent pre-exists, that someone
>> else cannot independently create the same thing, which of course is
>> possible and likely. Ideally, all patents would be kept a secret so
>> that those independently developed creations could have a life also,
>> instead of just those of  "the chosen ones". Not allowing software
>> patents would seem to "level the playing field" for all and cut out
>> useless administration tasks.
>>
>> Hmm, no it wouldn't: big money would feed off of the inventions of
>> the little guy.
>
> In fact, it's the exact opposite.  Smaller software companies usually
> win because they are more agile and they charge less.  If you really
> think Big Money would feed off the little guy,

Change "little guy" to "the one who did the R&D" and it's more general. 
That R&D could mean "the whole world" to the little guy (doesn't have to 
necessarily be "little"), but is trivial to the billion-dollar software 
oppressor. Little guy releases his life's work, only to be crushed in the 
market the following month by Big SOB Software, Inc. via it's leverage of 
funds and labor. All the little guy can hope for is that the consumer 
will recognize what is happening, and buy from him instead of from Big 
Asshole Software.

> why do so many
> software giants oppose eliminating or lessening software patents?

So far, from this thread, I think I have realized that I would prefer 
either:

1. Allowing patents for things that cannot be kept a secret, while 
allowing independently-developed inventions to be enabled and facilitated 
via elimination of patent if independent development of a patented thing 
can be shown to have occurred.

2. Can't help but reserve some hope for the consumer. (This would be the 
ideal scenario, but I'm not holding my breath). IOW, "U ken have yer 
steenkeen patents Mr. Big Asshole owner, but ain't no one gonna buy from 
you no more".

>> That's where the consumer fits in though: don't buy from the
>> undeserving, and identify them as the predators they are. That may
>> be the key: render power/money-as-power, useless as a strategy.
>
> I'll buy from whomever makes the best product.

My goal is to buy from those who have less than I do, at some level of 
acceptable product (and not for heart surgery). "Best" is, of course, 
subjective. I find nothing good in making the already rich richer, but I 
do find good in giving other people a chance at freedom.

> If you make a good
> product, you deserve to be paid for it.

That is too simplistic to use as my philosophy, and surely Big SOB 
Software is banking on you seeing their 10-million-LOC, whiz-bang 
software as "the best". I'm just stating my philosophy, I'm in no way 
saying that it is better than yours or that you should change yours.

> Problem is, monopolies
> usually don't make a good product, because lack of competition
> hinders advancement.

That is not true. It can be true in a given instance or instances, but it 
is not in general true. There are possibilities other than just 
"monopoly" and "competition".

>
>> Something to
>> think about next time you buy from someone who has more than you,
>> huh.
>
> I don't fault people for being successful.

I like helping people with lesser means to grow, achieve their dreams and 
have to nice lives as they wish them to be. Call it an investment in the 
future. The rich don't need my money, and if I can, I'll keep it from 
them. I see no good that comes from concentration of wealth and power.

> There is no need to punish
> someone because you are jealous of their wealth, you have the same
> opportunities (at least in the US).

You're free to state it, or color it, as you wish.

>
>>> Here, the patent system is just  getting in the way of innovation.
>>
>> The patent system is justified in the name of "incentive", but are
>> patents in reality, a crime against humanity?
>>
>> Patents should, perhaps, be to protect only what cannot be kept a
>> secret. "Incentive" shouldn't even be part of the equation.
>> "Incentive" is "prodding" at best, "imposition" at worst (where the
>> "crime against humanity reference above came from).
>
> No, you misunderstand the position.

Maybe, but probably not entirely. (Did you mean your's or the reason for 
patents as originally marketed?)

> Patents are necessary to protect
> things that are not *already* protected by copyright.

It's hard for me to work copyright into this. I have a mindset that 
copyright does not afford protection from copycats. Protection for 
end-user copiers, yes, but that's something different. When I think of 
"patentable things", I'm thinking about things like that secret mechanism 
within the software that accesses the database data that is unique from 
all other ways (read, only I know how to do, or as far as I know I'm the 
only one) and is key to significantly improving the transaction rate. Is 
that patentable, assuming it hasn't already been patented?

> Copyright is
> much better protection when it is possible because it's very very
> difficult to duplicate a copyrighted work.

But if software is not like a book, then copyright is not appropriate. 
Maybe what I don't understand is the "machines cannot be patented" or 
whatever.

> Without patents, I feel
> innovation would not have been as rapid for most industries. Software 
> is not one of them.

If a software company is prevented from using an independently-developed, 
but already patented by someone else, thing, ... oh wait, we're on the 
same (or similar) page here! I don't see complete elimination of patents 
as a solution in fairness. Little guy has no defense against the 
powerful, for one thing (I don't have faith that the consumer would do 
anything other than "buy the "best"").

>
>>> It's having the opposite effect by  instilling fear in anyone
>>> writing software that some patent-holding  company is going to
>>> squash him out of business.
>>
>> It does do that, yes.
>>
>>>
>>> When was the last time you did anything with a patented software
>>> technology except *avoid it like the plague*?
>>
>> Never looked at any, but how many do I know of inadvertently because
>> they weren't kept a secret? Where are all the warning signs on
>> information describing patented things? They should have warnings
>> just like cigarettes (yet another cigarette analogy... Cigarettes
>> and information about patented things: things that may be hazardous
>> or dangerous).
>>>
>>>> How to improve patent system is another question.
>>
>> Can't be fixed and the only solution is to eliminate it?
>
> Or limit them.  Change the term to 2 years, and you will see a lot
> less issue.  17 years is about 8 generations in the software
> industry.  Think of what software was like 17 years ago.

I don't think the time is an issue. Making things easy for copycats and 
"the entitled" probably won't make for a "healthy" industry. It just 
makes more lazy people.

>
>>> GPL3 can actually play
>>>> some role here: there's no mercantile reason to restrict use of a
>>>> patented technology in a GPL3 software.
>>>
>>> IMO, there's no reason to ever use any form of GPL anymore.  It's
>>> work is  done.
>>
>> So now it's supposed to be credited with something and people should
>> bow to it? What is that something? That communism doesn't work in
>> practice?
>
> It's accomplishment was to enforce open-source software in spite of
> the corporate negative view of open source software.

Well I won't tangent again on my opinion of the quality of 
open-sourceware.

>  Essentially, it
> said "if you want our services, you have to play nice."  But now, we
> have much better open-source licenses, and a whole ecosystem built
> around open source.

And a lot of youngsters smoking cigarettes. Imagine instead if all the 
millions out of work right now were part of small software shops. Which 
is better? Is it hard to believe that the innovation would not have been 
orders of magnitudes greater than it has been? (Call it, a hypothesis). I 
can point at open-sourceware as a stifler of innovation and betterment as 
easily as I can at Monstrous Software Company. (Call it, faith in the 
individual).